G.R. No.

L-46182 February 28, 1978

JAIME GAPOY, petitioner,
vs.
HON. MIDPANTAO L. ADIL, Presiding Judge, Branch II, Court of First Instance of Iloilo,
PURIFICACION GALVE and ANTONIO GUARANA, respondents.
German M. Lopez for petitioner.
Jocon Espino for private respondents.

GUERRERO, J.:
Petition for certiorari from the order of the Court of First Instance of Iloilo dismissing petitioner's case,
and the order of the same court denying the motion for reconsideration of the aforesaid order of
dismissal.
In the Third Amended Complaint dated February 22, 1974 for "Reconveyance Ownership,
Possession and Damages," filed by petitioner. Jaime Gapoy against spouse Purificacion Galve and
Antonio Guarana, docketed as Civil Case No. 8371 in the Court of First Instance of Iloilo, petitioner
claimed to be the lawful and absolute owner, of a parcel of land measuring 24,3752 hectares, which
he, together with his predecessor-in-interest had been in peaceful continuous, public and adverse
possession in the concept of owner since time homework causing them to declare the property in
their names for tax purposes.
The complaint alleged that sometime in 1973, Petitioner learned that a portion of the land containing
29,735 square meters was wrongfully registered in the names of defendants, the private
respondents herein, and an Original Certificate of Title was allegedly served by them through fraud
and with coupled with breach of trust; that by means of strategy and stealth, and taking advantage of
the illiteracy of petitioner, respondents took possession of the portion Covered by the title to the
exclusion of petitioner; that later in the same year, petitioner again learned that respondents
mortgaged the same portion to the Development Bank of the Philippines for the sum of P2,000.00;
and that by means of the alleged illegal acts and respondents' refusal to vacate and reconvey the
land after petitioner's demand, the latter was deprived of the right to enjoy and possess the property.
In their "Answer to Second Amended compensate dated December 7, 1973, respondents denied
petitioner's claim of ownership and stated that petitioner never came into posted decision of the
disputed property. Respondents exclusive ownership and possession of the property which was
originally registered and titled in their names in accordance with the Cadastral Act. As countered
they prayed for multiple award for attorney's fee, moral damages and for actual litigation expenses.
Trial was commenced on July 14, 1976. Continuation was set on October 14, 1976, but on this
designated date, petitioner who was due to testify on his own behalf failed to appear because he
became sick of diarrhea and severe abdominal pain as certified to by a Rural Health Midwife.
Petitioner's counsel who was, however, present verbally moved for postponement of the trial which
motion was not objected to by respondents. Consequently, respondent Presiding Judge Midpantao
L. Adil issued the following order:

The plaintiff in this case being absent despite due notice, this case is hereby
DISMISSED for failure to prosecute.
This dismissal should be set aside if the plaintiff can show that his sickness is of such
a nature, as evidenced by the proper medical certificate that it would have been
really impossible physically for him to attend the trial today.
SO ORDERED.
Iloilo City, October 14, 1976.
A verified motion for reconsideration of the above order was filed by petitioner but the same was
denied by respondent judge in the next quoted order:
This is to consider the second Motion for Reconsideration, dated December 3, 1976,
filed by the plaintiff and submitted for resolution today.
A of the motion shows that it is not accompanied by an affidavit of merit. An Affidavit
of Merit is required in a motion for bemuse it is based on the same ground as
available for new trial. There is no distinction between the two. (Fortune En Inc. vs.
Gen. Finance Corp., L-13259, May 19, 1958, p. 164 Edition). Such being the case, it
should follow the requirements for a motion for new trial A motion for new trial is
fatally defective if it is not supported by an affidavit of merit. (Castaeda vs. Ago, L14066; Chengay vs. La Guardian, L-20739, cited p. 162, Ibid).
THEREFORE, premisses considered, the motion for reconsideration is hereby
DENIED for lack of merit.
SO ORDERED
ILOILO CITY, December 7, 1976.
Hence, petitioner comes to Us assailing the inconsiderate of his action and praying for reinstatement
of the case for further proceedings.
For Our resolution is whether or not respondent judge had abused his discretion in dismissing the
case below. Obviously the order of is a judgment of nonsuit, or for failure to prosecute under section
3, Rule 17 of the Rules of Court, predicated mainly on petitioner's failure to appear at the trial. The
rule provides:
Sec. 3. Failure to prosecute. If plaintiff fails to appear at the time of the trial, or to
prosecute his action for an unreasonable length of time, or to comply with these rules
or any order of the court, the action may be dismissed upon motion of the defendant
or upon the court's own motion. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise provided by court.
It is a settled rule that the court can dismiss a case, even of its own accord, for failure of plaintiff to
appear at the time of trial or to prosecute his action. Such dismissal depends upon the sound

discretion of the judge, exercised with a view to the circumstances surrounding each particular
case, 1 not reversible on appeal in the absence of abuse of discretion. The burden of showing abuse is
upon the appellant since every presumption is in favor of the correctness of the court's action. 2
Notwithstanding the accepted basic principle, it is imperative to note that dismissal of actions under
section 3 of Rule 17 should be applied with extra care. The repressive or restraining effect of the
Rule amounting to adjudication upon the merits may cut short a case even before it is fully litigated.
Consequently, a judgment arrived thereat may forever bar a litigant from pursuing judicial refer under
the same cause of action. Hence, it becomes necessary that the sound discretion of the court must
extend to the vigilance of duly recognizing the circumstances surrounding the particular case to the
end that technicality shall not lord over substantial justice. This is but to keep alive the dictum
in Dayo, et al. v. Dayo, et al. 3 which enunciated that "... dismissals should be ordered not as penalty for
neglect of the petitioners, but only in the extreme cases where the termination of the proceeding by
dismissal is the only remedy consistent with equity and justice."
By no means is the Rule intended as instrument of haste as the brief order of dismissal swiftly
attests. The Rule is not a mechanical axe that automatically fans by plaintiff's mere failure to appear.
To constitute failure to prosecute, his nonappearance must be equated with unwillingness to proceed
with the trial as when both plaintiff and counsel made no appearance at all, or with the assumption
that plaintiff has already lost interest in prosecuting his action, 4 in the same way that should the
ground for dismissal be delay, this delay or failure to proceed must be for an unreasonable length of time
beyond the reasonable allowance which by judicial leniency a litigant is normally entitled.
The data in the records show that the complaint was originally filed as early as October 6, 1970 and
defendants answered on November 11, 1970. As can be gleaned from the annexes to the petition,
the complaint was amended no less than three times, the last of which is dated February 22, 1974.
Pre- trial commenced on July 14, 1976 and on the same date plaintiff presented his first witness. In
the following trial on October 14, 1976, petitioner through his wife, informed his counsel that he could
not attend the trial due to illness, hence, counsel moved for the postponement of trial without
objection from respondents.
It would, indeed, appear that from October 6, 1970 up to the issuance of the order of dismissal on
October 14, 1976, is considerably so long a time in relation to the progress had in the proceedings.
Yet, We cannot be certain who is responsible for the delay or whether there had been real intention
to delay the case. Respondents did not even flied their comments on the petition when required by
Us. Nothing in the records shows that plaintiff had indulged in recurrent motions for postponement.
That the substantial rights of respondents have been affected is neither attested; for had there been
any, they themselves could have filed a motion to dismiss due to delay without having to wait for the
issuance of the October 14 order. On the other hand, had there been really a clear failure to
prosecute, respondent judge could have dismissed the case outright or at least terminated the same
without prejudice in accordance with the Rule. Strangely, the dismissal was only coupled with a
condition that it shall be set aside if petitioner can show that his sickness is of such a nature that it
would have been really impossible for him, physically, to attend the scheduled trial. We cannot say
that this is an order without prejudice as nothing therein allows the filing of the case anew if the
condition is not muffled At most, the order is prejudicial with reservation, since it in effect expresses
the desire of the respondent judge to continue hearing the case on the merits if the condition is
fulfilled.

Counsel for petitioner's quick rapport in asking for a postponement of the trial is a prima facie
contradiction of failing interest, at least on the part of the counsel of course, We do not overlook the
procedural requirements of a motion to postpone trial for illness of a party under section 5 of Rule 22
which provides that the motion "may be granted if it approved upon affidavit that the presence of
such party (or counsel) at the trial is indispensable and that the character of his illness is such as to
render his non-attendance excusable." But in construing this rule, liberality has always been the
guide when the request for postponement is reasonable rather than capricious. This liberality aims at
giving a litigant the day in court as due process demands, a better practice, which, even for the
highly commendable desire for the dispatch of should not be easily sacrificed. 5 There being no sign
that substantial rights have been eroded and an intention to delay not manifest, respondent judge should
have followed the liberal practice of allowing postponement. We have seen in this regard, that
postponements and continuances of trial are parts and parcels of our procedural system of dispensing
justice. 6
In the subsequent order denying petitioner's motion for reconsideration, respondent judge implied
that the motion is fatally defective for lack of an affidavit of merits. The order predicated the necessity
of an affidavit of merits on the impression that the motion for reconsideration has the same ground
as that of a motion for now trial and that there is no distinction between the two. We do not
necessary share such a superficial view. There is, in a distinction and a reason to differentiate the
two. This, the Court cogently discussed in Lucero v. Dacayo; 7 thus:
In the first place, there was no in request that the affidavit of merits state the plaintiffs
cause of action, because that was already pleaded in the complaint filed in the same
court. Secondly, the provisions of Rule 37 on New Trial, do not govern all motions for
reconsideration based on fraud accident excusable negligence or dismissed they are
applicable only when a party, adversely affected by a judgment already rendered in a
case, seeks to have it set aside and a new trial held, in the hope that the aforesaid
judgment may be reversed or modified on account of the evidence that is to be
produced. For, if a new trial is indeed granted, the original decision shall be
vacated and the action is to stand for trial de novo. The procedure contemplated
under this Rule, therefore, involves a reopening of the case for hearing, after it was
already submitted for decision and a judgment thereon was actually reached. Since
the reopening would necessarily affect the party in whose favor the disputed
judgment was rendered, the Rule requires the movant to show the valid cause of
action or defense which he intends to prove at the new trial to prevent this remedy
from being put merely to delay termination of the proceedings. (Emphasis supplied)
It ought to be noted that in the case at bar, the motion for reconsideration flied does not have the
purpose of a new trial The trial proper never reached a consummate stage, in fact, it had barely
started. It is quite clear that the motion for reconsideration only sought for a continuation of the
heating to allow petitioner to testify on his own behalf by asking that the order of dismissal be set
aside. The motion manifested that petitioner has a meritorious cause probable by documents in his
on which he intended to offer in evidence had he been given the chance to testify. The motion having
been verified by petitioner himself and accompanied by a certificate, issued by a public midwife in
charge of the Rural Health Center where petitioner resides, confirming the latter's illness, We find
substantial proof to indicate that the cause of his non-appearance is not far from truth. It is not
practical to require petitioner to present a certification of a physician when he never consulted one,
as none resided nor practiced in the place where he was treated. In a recent reiteration , We held:

Time and time again WE have emphasized that the Rules of Court should not be
interpreted to sacrifice substantial rights of a litigant at the altar of technicalities to the
consequent impairment of the sacred principle of justice (Alonzo vs. Villamor, 16 Phil.
315; Case & Nantz vs. Jugo, 77 Phil. 517, 522). WE ruled that the Rules of Court
frown upon hair-splitting technicalities that do not square with their liberal tendency
and with the ends of justice (Case & Nantz vs. Jugo, supra). 8
For strictly adhering to legal technicalities and disregarding the standard of liberality set in our
jurisprudence, We find that respondent judge abused his discretion in dismissing the action.
WHEREFORE, the orders appealed from are hereby set aside and the case remanded to the lower
court for further proceedings. No costs.
SO ORDERED.